United States v. Chollet

30 M.J. 1079, 1990 CMR LEXIS 579, 1990 WL 82921
CourtU S Coast Guard Court of Military Review
DecidedJune 18, 1990
DocketCGCMS 23952; Docket No. 936
StatusPublished

This text of 30 M.J. 1079 (United States v. Chollet) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chollet, 30 M.J. 1079, 1990 CMR LEXIS 579, 1990 WL 82921 (cgcomilrev 1990).

Opinions

BAUM, Chief Judge:

Appellant was tried by a Special Court-Martial consisting of officer members. Despite his pleas of not guilty to the charge and specification, he was convicted of one specification of wrongful cocaine use in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. Thereafter, the court sentenced appellant to be discharged from the United States Coast Guard with a bad conduct discharge, to be reduced to pay-grade E-l and to be reprimanded. Contemporaneously, the court recommended that the convening authority reduce the discharge to one with “less than honorable conditions.” The convening authority, however, approved the sentence as adjudged.

Appellant has assigned three errors before this Court:

I
THAT THE MILITARY JUDGE ERRED IN IGNORING THE MEMBERS VERDICT AND, DESPITE CLARIFICATION BY THE PRESIDENT OF THE COURT-MARTIAL, IMPROPERLY INSTRUCTED THE MEMBERS TO SENTENCE APPELLANT TO A BAD CONDUCT DISCHARGE.
II
THAT APPELLANT’S DETAILED DEFENSE COUNSEL DID NOT INFORM HIM OF A CONFLICT OF INTEREST REGARDING HIS RELATIONSHIP WITH THE CONVENING AUTHORITY AND THAT UNWAIVED CONFLICT RESULTED IN PREJUDICIAL ERROR.
III
THAT THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY DENYING THE DEFENSE CHALLENGE FOR CAUSE AGAINST ONE OF THE COURT MEMBERS.

These assignments have been briefed and orally argued and the case is now [1081]*1081ready for decision. The assignments will be addressed in reverse order.

Assignment of Error III

Appellant has cited several reasons why one of the court members, a Coast Guard Commander, should have been disqualified from sitting, after challenge for cause: (1) the convening authority was the court member’s second line supervisor and reporting officer on his officer evaluation report; (2) the court member, in turn, was supervisor of another court member and responsible for preparing that officer’s evaluation report; (3) the court member, as acting executive officer of appellant’s command when appellant’s urinalysis sample was returned, knew the results of that urinalysis; and (4) the court member, in addition to all other asserted disqualifying factors, had a fairly close personal relationship with the convening authority, as next door neighbor, which was exemplified by the disclosure that the convening authority’s wife was baby sitting with the court member’s son at the very time of voir dire examination.

Appellant acknowledges that perhaps any one of these four reasons alone should not be grounds for challenging a member for cause, but contends that taken together they inject much more than substantial doubt as to the fairness and impartiality of the member, despite the member’s assurances to the contrary. In this regard, the commander, in response to direct queries, expressly disclaimed a personal interest in the outcome of the trial and asserted his impartiality. Voir dire questioning revealed that the extent of the member’s prior knowledge of appellant’s urinalysis was only that the results had come back positive, a fact readily apparent from the charges alone. Moreover, the court member vowed that he would base his decision in the case solely on matters properly presented to the court for consideration. The member also indicated that he had no problem disagreeing with the convening authority, stating, “I have had to look Captain Caster in the eye a lot of times and tell him things that he doesn’t want to hear and I have never had a problem doing that.” Record of Trial at 40.

Government counsel contends that when it comes to challenges for cause against court members, the question of bias is essentially one of credibility and, therefore, largely one of demeanor. Accordingly, citing U.S. v. Reynolds, 23 MJ 292, 294 (CMA 1987) and U.S. v. Carns, 27 MJ 820, 822 (ACMR 1988), he argues that due to the trial judge’s ability to assess first hand such credibility and demeanor, the judge’s determination is entitled to great deference on appeal and should not be reversed absent a clear abuse of discretion. We agree. As in Reynolds, supra, the member’s responses indicating he would keep an open mind and would not be influenced by his association with the convening authority have convinced us that the military judge did not abuse his discretion in denying the defense challenge for cause. In upholding the judge’s ruling on this matter, however, we register our concurrence with the following views of Chief Judge Holdaway, as expressed in his separate opinion in U.S. v. Carns, supra:

When this court finds that a trial judge did not abuse his discretion, it does not always follow that we agreed with his ruling or would have ruled as he did. Rather, our trial judges are given broad latitude to make decisions, so long as they are reasonably based upon the evidence before them. It would not do to pay mere lip service to such an important judicial concept by limiting the judge’s “discretion” to those instances in which this court agrees with him.
27 MJ 820, 823, n. 6

We believe Judge Cox’s advice in U.S. v. Reynolds, supra, also bears repeating: “[w]e ... encourage liberality in ruling on challenges for cause. Failure to heed this exhortation only results in the creation of needless appellate issues.” U.S. v. Reynolds, supra at 294.

Finally, we take note of the fact that appellant exercised his peremptory challenge of the commander in question. As a result, that officer did not sit as a member in this case. The government [1082]*1082points out that there is authority for the position that use of the peremptory challenge cures any possible error from improper denial of a challenge for cause. U.S. v. Harris, 13 MJ 288 (CMA 1982); U.S. v. Jobson, 28 MJ 844, 848 (AFCMR 1989), certif. filed, 28 MJ 350 (argued 13 FEB 90, decision pending); U.S. v. Davenport, 14 MJ 547 (ACMR 1982); U.S. v. Dawdy, 17 MJ 523, 525 (AFCMR 1983). Accordingly, even if the judge were deemed to have abused his discretion, no prejudice resulted.

For all of these reasons, appellant’s assertion in Assignment of Error III that the military judge erred to the substantial prejudice of appellant is rejected.

Assignment of Error II

In Assignment of Error II, appellant contends that there was a conflict of interest resulting from the detailed defense counsel’s relationship with the ultimate convening authority and that since there was no full disclosure of that relationship there was no voluntary intelligent waiver of the conflict. The facts on which appellant bases this argument are that Captain Paul Blayney, USCG, who detailed the defense counsel to this case in his capacity as Chief of the Legal Division, Maintenance and Logistics Command, Atlantic, ultimately took convening authority action on the sentence after relieving the officer who referred charges to trial, Commander, Coast Guard Section, Greater Antilles, San Juan, Puerto Rico. The trial in this case was completed and the officer evaluation report on detailed defense counsel was signed by Captain Blayney before he reported to his new duty assignment in Puerto Rico.

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Related

United States v. BeLarge
19 C.M.A. 91 (United States Court of Military Appeals, 1969)
United States v. Rowser
2 M.J. 1160 (U.S. Navy-Marine Corps Court of Military Review, 1975)
United States v. Harris
13 M.J. 288 (United States Court of Military Appeals, 1982)
United States v. Davenport
14 M.J. 547 (U.S. Army Court of Military Review, 1982)
United States v. Dawdy
17 M.J. 523 (U S Air Force Court of Military Review, 1983)
United States v. Reynolds
23 M.J. 292 (United States Court of Military Appeals, 1987)
United States v. Carns
27 M.J. 820 (U.S. Army Court of Military Review, 1988)
United States v. Jobson
28 M.J. 844 (U S Air Force Court of Military Review, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
30 M.J. 1079, 1990 CMR LEXIS 579, 1990 WL 82921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chollet-cgcomilrev-1990.